C-137/79

JUDGMENT OF 11. 7. 1980 — CASE 137/79 KOHLL v COMMISSION

CELEX: 61979CJ0137
Datum: 1980-07-11
Källa: eur-lex.europa.eu

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case and the submissions advanced by the parties in the written procedure may be sunmarized as follows:

I — Facts and written procedure

1. The relevant Community rules

Article 47 of the Staff Regulations of Officials of the European Coal and Steel Community of 1956 provided that:

“The General Regulations of the Community shall govern, in the circumstances laid down in the present Staff Regulations: ... 3. The amount of ... the separation allowance granted to servants who before taking up their duties resided continuously for more than six months in a place more than 25 kilometres from the seat; ...”

In implementation of the abovementioned provision, Article 9 of the General Regulations of the ECSC of 1956 provided that:

“(a) Officials who fulfil the conditions laid down in Article 47 (3) of the Staff Regulations are entitled to a separation allowance equal to 20% of their basic salary ... (b) Officials who as a result of a new posting take up residence less than 25 kilometres from the place where they resided before their entry into the service lose the right to the allowance provided for in paragraph (a);...”

Article 4 of Annex VII to the Staff Regulations of Officials of the European Communities (Regulation No 259/68), which came into force on 1 March 1968, lays down that:

“1. An expatriation allowance shall be paid equal to 16% of the total amount of the basic salary plus household allowance and the dependent child allowance paid to the official, (a) to officials: Who are not and have never been nationals of the State in whose territory the place where they are employed is situated; and Who during the five years ending six months before they entered the service did not habitually reside or carry on their main occupation within the European territory of that State. For the purposes of this provision, circumstances arising from work done for another State or for an international organization shall not be taken into account; (b) to officials who are or have been nationals of the State in whose territory the place where they are employed is situated but who during the ten years ending at the date of their entering the service habitually resided outside the European territory of that State for reasons other than the performance of duties in the service of a State or of an international organization ...”

The transitional provisions in the fourth paragraph of Article 97 of the Staff Regulations of Officials of the ECSC of 1962, which remained applicable by virtue of the final paragraph of Article 2 of Regulation No 259/68, provide that:

“Where as a result of an alteration in his place of employment an official established under Article 93 no longer fulfils the conditions laid down in Article 4 of Annex VII for receiving the expatriation allowance, he shall nevertheless continue to receive that allowance if the former Staff Regulations of Officials of the European Coal and Steel Community entitled him to the separation allowance”.

2. Facts

The applicant, Mr Kohll, who is a national of Luxembourg, was engaged on 1 October 1954 by the High Authority of the ECSC as a temporary assistant photocopier. On being established, with effect from 1 January 1962, he was promoted to the post of clerical officer in Grade C 3/1. Prior to his entry into the service Mr Kohll lived in Dudelange, which is less than 25 kilometres from the place of his employment, Luxembourg.

By a decision of the appointing authority of 5 July 1968 the applicant was assigned to the Directorate-General for Personnel and Administration in Brussels. While he was in Belgium he purchased a house at Tervuren.

In a letter of 14 April 1978 Mr Kohll requested assurance from Mr Pratley, Head of the Individual Rights and Privileges Division in Brussels, that he could continue to draw the expatriation allowance in the event of his being transferred to Luxembourg.

On 20 April 1978 Mr Pratley sent him the following reply:

“... in the event of your being transferred to Luxembourg payment of the expatriation allowance would be withdrawn unless you establish your place of residence more than 25 kilometres away from the place where you were living before your entered the service, that is to say, Dudelange, this being the result of the provisions of Article 9 (b) of the General Regulations of the ECSC taken in conjunction with the fourth paragraph of Article 97 of the Staff Regulations of the ECSC, which came into effect on 1 January 1962.”

On 14 June 1978 Mr Kohll applied for a post in career bracket C 3/2 in Luxembourg which was the subject of Vacancy Notice COM/399/78.

By a decision of the Head of the Personnel Division in Luxembourg, dated 22 August 1978, the applicant was transferred, with effect from 1 October, to a post in that city as a clerical officer in the specialized department, known as “Management of Funds, Buildings and Procurement”, in the Directorate-General for Personnel and Administration.

Following Mr Pratley's reply, Mr Kohll had sold his house in Tervuren (at a loss, he claims, of 1500000 francs). He had also obtained from the Beamtenheimstättenwerk a loan of DM 184000 for the construction of a house in Ehnen, which is more than 25 kilometres from Dudelange, purchased a building plot in Rue Keeker, Ehnen, bought, meanwhile, a house in the same locality, and commenced building the new house.

On 13 October 1978 Mr Kohll asked the Head of the Personnel Division in Luxembourg, Mr Schwering, to

“... do whatever is required for me to obtain the expatriation allowance in view of the fact that my place of residence is Ehnen and I therefore fulfil the conditions set out in the note from Mr Pratley.”

The applicant was granted the allowance in question for the month of October 1978. Subsequently, the sum involved was recovered on the basis of Article 85 of the Staff Regulations, but, pursuant to the formal decision of 29 June 1979 rejecting his preliminary complaint, it was returned to him on the ground that the conditions governing the application of Article 85 had not been met. In a note of 12 February 1979 Mr Schwering informed the applicant that he was not entitled to receive the expatriation allowance.

On 19 February 1979 the applicant lodged a complaint under Article 90 of the Staff Regulations.

In a letter of 29 June 1979, signed by Mr Tugendhat, the Commission rejected Mr Kohll's complaint.

This application was submitted on 28 August 1979 and lodged at the Court Registry on the following day.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court (First Chamber) decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The applicant claims that the Court should:

Declare that this application is admissible and was lodged within the prescribed period;

As regards the substance of the case:

Primarily

a) Declare that according to the staff rules applicable to persons reengaged under the Staff Regulations of Officials of the ECSC, he is entitled to continuation of the local allowance;

b) In that case, annul the decision rejecting his complaint and uphold the decision of 20 April 1978;

In the alternative

a) To the extent to which the decision of 20 April 1978 is not upheld as being vitiated by error, declare that the Commission is liable for the administrative mistake and must provide compensation therefor;

b) Fix the damages payable to the applicant at Lir 5250000 with interest according to law;

c) In so far as neccessary, allow the applicant to prove by the evidence of expert witnesses the damage resulting from the loss of the allowance and the loss incurred on the sale price of his house at Tervuren;

In thefinther alternative

Order the Commission to pay him during the whole period of his employment a separation allowance of 16% of his salary, by way of compensatory annuity;

In any event

Order the Commission to pay the costs.

The defendant contends that the Court should:

Dismiss the application as unfounded;

Order the applicant to pay the costs;

and reserves all its rights.

In his reply, the applicant offers to prove by way of inquiry that he would not have applied for a transfer if he had not received the assurance that he would retain the expatriation allowance.

Ill — Submissions and arguments of the parties

A — Submission relating to the infringement of Article 97 (4) of the former Staff Regulations of Officials of the ECSC

1. The applicant claims that under Article 97 (4) of the former Staff Regulations of Officials of the ECSC his entitlement to receive the expatriation allowance ought to have been allowed when he was transferred to Luxembourg with effect from 1 October 1978. In the case of an official who has been established pursuant to Article 93 of the ECSC Staff Regulations of 1962, a change in his place of employment preserves his entitlement to the allowance, even if he no longer fulfils the conditions laid down in Article 4 of Annex VII to the Staff Regulations. He must, however, have been entitled to receive the separation allowance under the former Staff Regulations of Officials of the ECSC. That requirement was satisfied as from the date of Mr Kohll's transfer to Brussels notwithstanding that whilst he was working in Luxembourg he did not meet the requirement as to distance. Secondly the person concerned must establish his residence 25 kilometres from his place of origin. This the applicant did, Ehnen being more than 25 kilometres from Dudelange. The applicant disputes the relevance of the objection contained in the letter from Mr Tugendhat, to the effect that, under Article 9 (b) of the General Regulations of the ECSC, officials who, as a result of a new posting, take up residence less than 25 kilometres from the place where they resided before their entry into the service lose the right to receive a separation allowance. He points out that Ehnen is more than 25 kilometres from Dudelange. The applicant also rejects the argument, set out in the same document, that Mr Kohll's new posting did not necessarily cause him to settle at a distance of more than 25 kilometres from where he resided prior to first taking up his duties. He argues that Article 20 of the Staff Regulations provides than an official must not reside at such a distance from his place of employment as may interfere with the performance of his duties. However, in the applicant's case, the journey from Ehnen to Luxembourg cannot be considered as so interfering. The applicant adds that the appointing authority may not question an official's choice of residence for that choice is a “human right”. He states that he selected that locality because he had family roots there.

2. The Commission replies that the applicant is not entitled to benefit from the transitional provisions in the fourth paragraph of Article 97. At no time during his first period of service in Luxembourg, which was governed by the ECSC Staff Regulations of 1956, was he able to draw the separation allowance because his place of residence at that time, Dudelange, was less than 25 kilometres from the institution in Luxembourg. It is equally fruitless for the applicant to rely a contrario upon the rule laid down in Article 9 (b) of the ECSC General Regulations. Although his present place of residence, Ehnen, is certainly more than 25 kilometres from where he resided prior to his entry into the service, Dudelange, the applicant has failed to establish that it was his posting to Luxembourg which necessitated his taking up residence more than 25 kilometres from his original place of residence. On the contrary, it appears from the explanations which have been given that it was on the basis of purely personal considerations that he decided to settle in Ehnen and to have a house built there. The raison d'être of the separation allowance is to compensate for extra expense incurred by the official as a result of the obligation, in view of the requirements of the service, to settle more than 25 kilometres from the place where he was residing prior to his appointment. It would run counter to the purpose of that allowance to make the grant of it dependent on the whim of officials, independently of any requirement of the service. In reply to two arguments which it considers to have no direct relevance to the claim, the defendant observes that the applicant's establishment of his residence at Ehnen does not contravene the provision in Article 20 of the Staff Regulations, that his reliance upon the concept of human rights is misplaced, and that the administration does not infringe the right to freedom in the choice of a place of residence by making the grant of the expatriation allowance subject to a minimum distance requirement — dictated by the requirements of the service — for that is precisely what is liable to cause the official the extra expense for which the allowance is intended to compensate.

3. In his reply the applicant claims that the last requirement laid down in the fourth paragraph of Article 97, namely “... if the former Staff Regulations of Officials of the European Coal and Steel Community entitled him to the separation allowance”, should not be understood as meaning “actual enjoyment” of a right but “entitlement” thereto. Such a right would have been present were it not for the condition attached to it, namely, previous residence at a distance of more than 25 kilometres from the seat of the institution. But, according to the fourth paragraph of Article 97, any change in the place of employment gives officials established under the terms of Article 93 of the ECSC Regulations a fresh entitlement to receive the allowance. Any contrary interpretation would mean that two Luxembourg nationals recruited into the service of the ECSC, the first coming from just over 25 kilometres from the seat of the institution and the second from 24 kilometres, who are transferred together to Brussels and then reposted at the same time to Luxembourg would find themselves treated differently on their return, the first receiving a salary 16% higher than that of the second. The applicant refutes the argument that grant of the allowance in question cannot depend merely on the whim of officials, irrespective of any requirements of the service. It was a requirement of the service which necessitated Mr Kohll's leaving Tervuren. And it was a sensible measure of economy for him to opt to construct a house in Ehnen on land belonging to him.

4. In its rejoinder the Commissiołi replies that there is no entitlement to a right unless the conditions for its enjoyment have been met. Mr Kohll cannot argue that Article 47 (3) of the ECSC Staff Regulations of 1956 “entitled” him to the separation allowance prior to 1962 for he never received it. The advantage conferred by the fourth paragraph of Article 97 may therefore only be claimed by officials who actually received the allowance, as is confirmed by the wording which has been used: “entitled him to the separation allowance” and not “had entitled him”. The distance requirement laid down in the former Staff Regulations of the ECSC is objective in its nature and the hypothetical borderline case described by the applicant does not mean that the provision must be considered “absurd”. Is it possible to imagine an official who has completed 9 1/2 years' service claiming payment of the pension provided for under Article 77 of the Staff Regulations in reliance on the fact that he has completed “almost 10 years' service”? In the hypothetical case described by the applicant the two officials reposted to Luxembourg would have again been placed in the position in which they were prior to their posting to Brussels, irrespective of where their residence lay prior to their first entry into the service. The Commission maintains its view that the fact that he was transferred from Brussels to Luxembourg in no way compelled the applicant to settle in a locality more than 25 kilometres from the place of recruitment.

B — Submission relating to the Commission's liability for a wrongful act

1. By way of introduction, the applicant observes that, according to Articles 6 and 9 of the Decision of the Commission of 5 October 1977 relating to the exercise of the powers conferred on the appointing authority by the Staff Regulations of Officials, any decision concerning the application of the fourth paragraph of Article 97 of the former Staff Regulations of the ECSC or the application of Article 4 of Annex VII is a matter for the Head of the Division or the Head of a specialized department within the Directorate-General for Personnel and Administration. Mr Pratley is the Head of the specialized Individual Rights and Privileges Division. The reply given by Mr Pratley to the applicant's request for information comes within the context of Article 90 (1) of the Staff Regulations and amounts to a decision. If the Commission's representative made an error it is the defendant who must bear the consequences in accordance with Article 91 of the Staff Regulations. The problem of the causal link is settled by the fact that, if the reply to the question of retaining the expatriation allowance had been in doubt, Mr Kohll would certainly have abandoned the idea of leaving Brussels. The applicant claims to have suffered loss consisting of: On the one hand, loss of the expatriation allowance for the 25 years which have still to elapse before his retirement, namely, the sum of Lfr 3750000; On the other hand, the loss suffered on selling his house in Tervuren at a price Lfr 1500000 below its value.

2. The defendant replies that the note from Mr Pratley bears none of the features which have been identified by the Court as constituting a decision (cf. Case 54/65, Forges de Châtillon, [1966] ECR 185). The author of that note is not the authority competent to adopt a decision concerning the grant of an allowance to an official posted to Luxembourg: the decision of the Commission of 5 October 1977 shows in fact that that authority is Mr Schwering, Head of the Personnel Division in Luxembourg. The note cannot have any legal effect whatsoever as it relates to a purely hypothetical situation. It does not represent the termination of an internal procedure. It does not employ the word “decision” and the form in which it is drafted is not such as to give the impression that it had that nature. It is apparent from the case-law (Joined Cases 19, 20, 25 and 30/69, Richez-Parise and Others [1970] ECR 325) that, apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act. The applicant has failed to establish in what regard the error made in this case is, exceptionally, a wrongful act. To be such it is necessary, in addition, that the false information should have been supplied by the authority which is competent in the matter, quod non. Furthermore the applicant was in no way invited by the administration to obtain information from Mr Pratley. Finally, the applicant was informed as early as 13 October 1978 by Mr Vanetti, of the Personnel Division, that Mr Pratley's interpretation was mistaken. The damage caused by loss of the allowance, if any, may only be equal to a monthly payment to be made during the actual duration of the applicant's future employment and in the form of an ad personam compensatory allowance, the amount of which would decrease in step with and depending on the increases in his salary. The loss resulting from the sale of the house in Tervuren cannot be taken into consideration as there has been no proof of the existence of such a loss. As to the causal link, even if the information supplied by the administration may have played some part, it appears hardly likely that the applicant decided to request his transfer after a stay of ten years in Brussels solely because he believed he would be able to continue drawing the expatriation allowance. As soon as Mr Vanetti had alerted him (a fact which the defendant proposes to prove) it would have been prudent for the applicant to suspend all his transactions. The loss on the sale of the house in Tervuren is wholly unconnected with the alleged wrongful act on the part of the administration; such a wrongful act, even if it had led Mr Kohll to request a transfer to Luxembourg, would not have forced him to sell the house in question immediately.

3. In his reply to the Commission's argument concerning the note from Mr Pratley, the applicant cites the judgment in Case 54/77 (Herpels [1978] ECR 585) according to which the subject-matter of complaints must “be interpreted and understood by the administration with all the care that a large and well-equipped organization owes to those having dealings with it, including members of its staff.” He fails to see how it may be inferred from the wording of Article 6 of the decision of the Commission of 5 October 1977 that the authority competent in the matter was the head of division in Luxembourg and not in Brussels. Moreover, the note in question does not relate to a hypothetical situation for the request was made in relation to a specific situation. Nor can there be any question of the termination of an internal procedure in the course of normal relations between staff and administration. Finally, to argue that the note from Mr Pratley does not employ the word “decision” is, to say the least, a technical point. The erroneous information does constitute a wrongful act as it was not rectified in time, that is to say, before the applicant had to decide to submit his application for transfer to Luxembourg. Moreover, the expatriation allowance was paid during the first month spent by Mr Kohll in his new post. To say that it is unlikely that the applicant would have decided to apply for a transfer solely because he believed he would be able to continue drawing the allowance is to distort the simple question whether Mr Kohll would have asked for a transfer had Mr Pratley told him that he would lose the allowance. The applicant offers to prove that point. Concerning the loss of the allowance, the applicant refuses the Commission's offer to pay a decreasing and transitional amount because compensation must be full. As regards the loss on the sale of his house Mr Kohll proposes that the true nature of his loss be the subject of expert evidence. He claims that he was forced to sell his house in Tervuren in order to be able to build in Luxembourg. That Mr Vanetti ever indicated that he would no longer benefit from the expatriation allowance is disputed by the applicant and he asks the Court to hear that employee. When Mr Kohll learned that he was no longer entitled to the allowance it was already too late to cancel the building in Ehnen without incurring liability for damages for breach of contract.

4. In its rejoinder the defendant distinguishes a request made by an official under Article 90 (1) of the regulations asking the appointing authority to adopt a decision with respect to him from a simple request for information. The letter to Mr Pratley clearly belongs to the second category of request. The applicant is wrong in saying that no correction was supplied by the administration. When he made his request for information Mr Kohll gave no indication of the date on which he contemplated a transfer and the question of his entitlement to the allowance was not raised with the administration thereafter. The reason for paying the allowance for October 1978 is an administrative practice whereby, when an official is transferred, his former remuneration continues to be paid to him until his financial entitlements have been determined taking the transfer into account. Lastly, the Commission considers that it has still not been established that it was on the faith of the wrong information communicated to him on 20 April 1978 that the applicant applied for the post in Luxembourg. The defendant observes that the applicant's transfer did not compel him to embark on the construction of a house and that he could have rented one. It points out that in a case where the separation allowance provided for in Article 47 (3) of the ECSC Regulations of 1956 had been withdrawn from an official the Court had no criticism to make of the system whereby “... the allowance has been maintained ad personam until the amount of the allowance is absorbed by subsequent advancements” (Case 15/60 Simon v Court of Justice [1961] ECR 115). The applicant, represented by Victor Biel of the Luxembourg Bar, and the Commission of the European Communities, represented by Daniel Jacob of the Brussels Bar, presented oral argument at the hearing on 6 March 1980. The Advocate General delivered his opinion at the sitting on 22 May 1980.

Decision

1. By an application dated 28 August 1979 the applicant, a Luxembourg national assigned to the Personnel Division of the Commission in Luxembourg, requests the annulment of the decision of 29 June 1979 rejecting the complaint he had submitted on 19 February 1979 seeking continuance of the expatriation allowance which was paid to him whilst he was posted to Brussels and, in the alternative, an order that the Commission should compensate him for damage consisting in, on the one hand, the loss of that allowance for the 25 years which have to elapse before his retirement (that is to say, a sum of Lfr 3750000) and, on the other hand, the loss he claims to have suffered in selling his house in Tervuren (Belgium) at a price of Lfr 1500000 below its true value.

2. Prior to his entry into the service of the High Authority of the ECSC on 1 October 1954 the applicant resided at Dudelange, that is to say, at a distance of less than 25 kilometres from his place of employment, Luxembourg.

3. Thus he was never entitled to the separation allowance granted under Article 47 of the ECSC Staff Regulations of 1956 to “officials who before taking up their duties resided continuously for more than six months in a place more than 25 kilometres from the seat of the institution”.

4. When, after being posted in 1968 to the Directorate-General for Personnel and Administration in Brussels, the applicant disclosed his intention of returning to Luxembourg he asked for information from the Head of the Individual Rights and Privileges Division in Brussels as to whether he could continue to draw the expatriation allowance in the event of his being transferred. In a letter of 20 April 1978 he received the following reply:

“... in the event of your being transferred to Luxembourg payment of the expatriation allowance would be withdrawn unless you establish your place of residence more than 25 kilometres away from the place where you were living before you entered the service, that is to say, Dudelange, this being the result of the provisions of Article 9 (b) of the General Regulations of the ECSC taken in conjunction with the fourth paragraph of Article 97 of the Staff Regulations of the ECSC, which came into effect on 1 January 1962.”

5. Having applied for a post in Luxembourg, the applicant was transferred to that city by a decision of the Head of the Personnel Division in Luxembourg as from 1 October 1978. He was granted the expatriation allowance for the month of October 1978, repayment of which was claimed from him under Article 85 of the Staff Regulations, but which was later refunded to him on the ground that the conditions for the application of Article 85 had not been met. Finally, in a note of 12 February 1979 the Head of the Personnel Division informed the applicant that he was not entitled to the expatriation allowance.

6. On his return to Luxembourg the applicant established his place of residence in Ehnen, which is more than 25 kilometres from where he resided prior to his entry into the service (Dudelange). He accordingly advances a first argument which proceeds upon an infringement of the fourth paragraph of Article 97 of the Staff Regulations of Officials of the ECSC of 1962 containing transitional provisions which remained applicable by virtue of the final paragraph of Article 2 of Regulation No 259/68 and which provide:

Submission relating to the infringement of the fourth paragraph of Article 97 of the former Staff Regulations of the ECSC

7. According to the applicant, he was entitled under that provision to receive the separation allowance from the date of his transfer to Brussels in 1968, even though as long as he was employed in Luxembourg he did not meet the requirement as to the distance of 25 kilometres from the seat of his institution. In order for him to have been entitled to the allowance it was thus sufficient for him to establish his place of residence at 25 kilometres from his place of origin.

8. However, the effect of the transitional provisions in the fourth paragraph of Article 97 of the ECSC Regulations of 1962 is that the applicant may not rely on those provisions since he never qualified for the separation allowance under the regulations of 1956 because the place where he resided prior to his entry into the service of the ECSC was less than 25 kilometres from his place of employment, Luxembourg, and he thus did not satisfy the condition laid down by Article 47 of the 1956 Staff Regulations.

9. The applicant bases an argument a contrario on the rule laid down in Article 9 (b) of the General Regulations of the ECSC which provided that “Officials who as a result of a new posting take up residence less than 25 kilometres from the place where they resided before their entry into the service lose the right to the allowance ...”. However, although, in fact, his new place of residence in the Grand Duchy, Ehnen, is more than 25 kilometres from that where he resided prior to his entry into the service, Dudelange, the applicant has not established that it was his posting to the Personnel Division in Luxembourg that caused him to establish his new place of residence at a distance of more than 25 kilometres from his original residence. On the contrary, it appears from the file on the case that the applicant chose to settle in Ehnen for purely personal considerations, not because of the requirements of the service.

10. The applicant's argument based on freedom in the selection of a place of residence cannot be upheld since the administration does not infringe that right by making the grant of the expatriation allowance subject to a minimum distance requirement.

11. The first submission is therefore unfounded.

Submission relating to the Commission's liability for a wrongful act

12. The applicant claims that if the Head of the Individual Rights and Privileges Division of Brussels made a mistake in informing him, by note of 20 April 1978, that, in the event of his being transferred to Luxembourg, he could continue to draw the expatriation allowance it is the defendant who ought to bear the consequences in accordance with Article 91 of the Staff Regulations. The causal link has been established, he claims, by the fact that, had the reply to the question of retaining the expatriation allowance been in doubt, he would have abandoned the idea of leaving Brussels.

13. The Commission is of the opinion that the note in question does not bear any of the features identified by the Court as constituting a decision. In particular, the author of the note was not the authority competent to take a decision concerning the grant of an allowance to an official posted to Luxembourg.

14. It must be borne in mind that, as the Court has already stated in its decisions of 28 May 1979 (Joined Cases 19, 20, 25 and 30/69, Ricbez-Parise, [1970] ECR 325) and 9 July 1970 (Case 23/69, Rehn, [1970] ECR 547), apart from the exceptional instance, the adoption of an incorrect interpretation does not constitute in itself a wrongful act.

15. In that respect it is appropriate to stress that, in the present case, the incorrect interpretation was supplied in reply to a hypothetical question. In addition, the relevant texts were available to the applicant who was thus in a position to inform himself as to the correct interpretation of the provisions. In these circumstances the fact that the Head of the Individual Rights and Privileges Division in Brussels supplied incorrect information as to the interpretation of the relevant provisions does not make the Commission liable.

16. The submission relating to Article 215 of the Treaty is thus unfounded.

17. As a result the application must be dismissed.

Costs

18. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

19. The Commission is not under any liability. However, as the incorrect information which was supplied regarding the interpretation of the provisions concerning the expatriation allowance gave rise to the present application, the Court considers it equitable to order the Commission to pay the costs of the proceedings.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the Commission to pay the costs.